Table of Contents

Thursday, December 13, 2007

The Mitchell Report

I just listened to the George Mitchell Report press conference on XM. While I am sure that it is not going to go away, I've downloaded and--largely for my own future reference, but feel free to download it--hosted the PDF of the report on my Google Pages server space.

After listening to the press conference, I have to say that I came away from it very impressed. Based on the build-up to this report, I was concerned that it was primarily going to be used as a witch-hunt to identify ballplayers who had used steroids in an era in which, while their use was illegal under federal law, were something that Major League Baseball had clearly decided to ignore.

It is true that this report's primary goal is to give a comprehensive overview of the history of steroid use and abuse in baseball. It details not only the players for which Mitchell and colleagues have found evidence of steroid abuse, and the resistance of the Players' Association to implementation of a drug policy, but also discusses the culpability of Major League Baseball owners and the commissioner in not attacking this problem aggressively.

It is interesting to see who has been implicated as a steroid user in this report. I have only skimmed the 400+ page document at this time, but here are a few names of former players that are fingered in this investigation as likely having purchased and used steroids or HGH that I found particularly notable: Barry Bonds (of course), Benito Santiago, Hal Morris, Andy Pettitte, Mo Vaughn, Denny Neagle, Ron Villone, Ryan Franklin, Kent Mercker, Miguel Tejada, Mike Stanton, Kevin Brown, Eric Gagne and probably most notably, Roger Clemens. I haven't read the evidence for each individual, but in many cases the charges are backed up by cancelled checks and/or mailing labels. Still, I would prefer to think of the cases against these players as allegations, rather than convictions for the time being.

As Mitchell stresses, however, the focus of baseball (which, I believe, includes both the fans and the media) moving forward should NOT be to dwell on the past in terms of attacking these players, but rather to focus on eliminating drug abuse moving forward. In terms of tone and message, I believe the following is the single most important passage in this report, and it was read verbatim in George Mitchell's press conference:

I urge the Commissioner to forego imposing discipline on players for past violations of baseball’s rules on performance enhancing substances, including the players named in this report, except in those cases where he determines that the conduct is so serious that discipline is necessary to maintain the integrity of the game. I make this recommendation fully aware that there are valid arguments both for and against it; but I believe that those in favor are compelling.

First, a principal goal of this investigation is to bring to a close this troubling chapter in baseball’s history and to use the lessons learned from the past to prevent the future use of performance enhancing substances. While that requires us to look back, as this report necessarily does, all efforts should now be directed to the future. That is why the recommendations I make are prospective. Spending more months, or even years, in contentious disciplinary proceedings will keep everyone mired in the past.

Second, most of the alleged violations in this report are distant in time. For current players, the allegations of possession or use are at least two, and as many as nine years old. This covers a period when Major League Baseball made numerous changes in its drug policies and program: it went from limited probable cause testing to mandatory random testing; since 2002, the penalties under the program have been increased several times; human growth hormone was not included as a prohibited substance under the joint drug program until 2005. Under basic principles of labor and employment law, an employer must apply the policies in place at the time of the conduct in question in determining what, if any, discipline is appropriate. Until 2005, there was no penalty for a first positive drug test under the joint drug program, although the Commissioner has always had the authority to impose discipline for “just cause” for evidence obtained outside of the program.

Third, and related, more than half of the players mentioned in this report are no longer playing in Major League Baseball or its affiliated minor leagues and thus are beyond the authority of the Commissioner to impose discipline.

Fourth, I have reported what I learned. But I acknowledge and even emphasize the obvious: there is much about the illegal use of performance enhancing substances in baseball that I did not learn. There were other suppliers and there have been other users, past and present. Many of those named in this report were supplied by Kirk Radomski. Yet plainly he was not the only supplier of illegal substances to major league players. Radomski himself said that some players told him they had other sources. And the evidence demonstrates that a number of players have obtained performance enhancing substances through so-called “rejuvenation centers” usingprescriptions of doubtful validity.

Fifth, the Commissioner promised, and I agreed, that the public should know what I learned from this investigation. Perhaps the most important lesson I learned is that this is a serious problem that cannot be solved by anything less than a well-conceived, well-executed, and cooperative effort by everyone involved in baseball. From my experience in Northern Ireland I learned that letting go of the past and looking to the future is a very hard but necessary step toward dealing with an ongoing problem. That is what baseball now needs.

The Commissioner should give the players the chance to make a fresh start, except where the conduct is so serious that he must act to protect the integrity of the game. This would be a tangible and positive way for him to demonstrate to the players, to the clubs, to the fans, and to the general public his desire for the cooperative effort that baseball needs to deal effectively with this problem. It also would give him a clear and convincing basis for imposing meaningful discipline for future violations.

This report also pokes major holes in Bud Selig's argument that baseball's testing program is "state of the art." That's not to say that it's irrelevant--it is a good start--but clearly there are additional steps that need to be taken, and Mitchell outlines these in his report.

Perhaps most important, in my view, is the creation of an independent entity that is outside the control of both MLB and the MLBPA, and yet is still both transparent and subject to audits. This would result in drug testing and prevention programs less something being done to players by the owners, but rather something that both owners and players must contend with. Given the us vs. then nature of MLB and MLBPA, this would seem to be a very important step.

I do think that, if Selig follows Mitchell's recommendations, this report can be a very positive thing for baseball. They can now, in effect, declare victory over the past and move forward. Hopefully that is exactly what everyone--the commissioner, the owners, the players, the media, and the fans--will do.

Update: The tone of Bud Selig's press conference indicated that he's largely going to ignore the entire section of Mitchell's report that I quoted above. This is a mistake. But at least he's planning to implement all the material suggestions regarding the drug testing and prevention program that Mitchell made, so there's that. Hopefully the MLBPA will go along with those suggestions--I expect they will, but you never know.